SBAF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 372 (14 November 2002)

Last Updated: 27 November 2002

FEDERAL COURT OF AUSTRALIA

SBAF of 2002 v Minister for Immigration

& Multicultural & Indigenous Affairs [2002] FCAFC 372

SBAF OF 2002 AND SBAG OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 157 OF 2002

DRUMMOND, NORTH AND DOWSETT JJ

14 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 157 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBAF OF 2002 AND SBAG OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, NORTH AND DOWSETT JJ
DATE OF ORDER:	14 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 157 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBAF OF 2002 AND SBAG OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, NORTH AND DOWSETT JJ
DATE:	14 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a judge of the Court who dismissed the appellants' applications for review of the decision of the Refugee Review Tribunal ("the Tribunal"), which affirmed the decisions of the delegate of the Minister not to grant the protection visas the appellants sought. The Tribunal's decision was given after October 2001. It is therefore the Migration Act 1958 (Cth) in its current form which governs this case.

2 The appellants, both Iranian citizens, are husband and wife. They claim refugee status essentially because they converted to Christianity from the Muslim religion while they were living in Iran. They fear persecution by the authorities for their apostasy if they were to be returned to Iran. They made other claims but those claims only served to support the claim based on their having changed their religion.

3 The Minister's delegate accepted that each had converted to Christianity, but the delegate rejected their claim to protection visas because the delegate considered that they did not have sufficiently high profiles to attract the attention of the authorities, even though Iranian law provides the death penalty for those convicted of apostasy.

4 As the learned primary judge noted, the Tribunal took a different course. It accepted that an Iranian citizen who converted to Christianity could for that reason suffer serious punishment. But the Tribunal did not accept as credible the appellants' claims that they had in fact converted to Christianity whilst still in Iran. The Tribunal found that they only involved themselves in Christian activities after coming to Australia. The Tribunal also found that they did that for the purpose of strengthening their claims to be refugees.

5 The appellants were not legally represented before the learned primary judge. However, it is apparent from his Honour's reasons that the appellants raised before him a number of complaints about the Tribunal's reasoning and its conduct of the hearing. These complaints were such as to require consideration by the judge. The process of reasoning which the Tribunal followed was subjected to extensive criticism by the appellants in the hearing before the judge. They also complained that they were treated unfairly in a number of respects by the Tribunal in the course of its hearing.

6 The learned primary judge accepted that in some respects the Tribunal's process of reasoning to its conclusions could be criticised, but he held that none of these criticisms was sufficient to show that the Tribunal's decision came within any of the provisos in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, with the result that s 474 the Migration Act prevented the grant of relief under s 39B the Judiciary Act 1903 (Cth).

7 The learned primary judge also considered at length each of the complaints the appellants made about the Tribunal having conducted the proceedings before it in a way which was said to have been unfair to the appellants in a number of respects. His Honour carefully explained in his reserved decision why he rejected each of these complaints of unfairness. The notice of appeal filed by the appellants does not identify any error of fact or law in the judge's decision.

8 Though the appellants did not file any written argument before the hearing commenced today, they did hand up to the Court documents containing some points which they wished to make, but it is apparent that the appellants are making effectively the same criticisms of the Tribunal that they put to the learned primary judge. These complaints were all dealt with by him and rejected.

9 The appellants contend in the documents they have given the Court today that they were told at the hearing by the Tribunal that it would invite the appellants to make any further comments to the Tribunal that they wanted at the end of the hearing. Essentially, the same matter was raised and dealt with by the learned primary judge at par [38] of his reasons. The learned primary judge, in dealing with these complaints, dealt specifically with what was said about the invitation that the Tribunal gave the appellants which they complained the Tribunal did not honour.

10 The appellants also in the documents they handed to the Court made some criticisms of the way the Tribunal dealt with their claims and in particular that of the wife's claim to having converted to Christianity. These claims were made to the learned primary judge and after considering them in detail, his Honour said, at par [41]:

"The recording of the hearing, finally, simply does not support the applicant's claim that the Tribunal told them that it had no doubts about their Christian beliefs. The recording does not support any claim that the Tribunal indicated to the applicants or to either of them during the hearing that it accepted that they genuinely held Christian beliefs."

11 It is apparent that the learned primary judge listened to the entire tape of the proceedings before the Tribunal, which at par [36]  he noted lasted about five hours, in taking care to check the claims the appellants made to him.

12 Finally, the appellants today complained of the way their assertions about having witnesses available in Malaysia were dealt with by the Tribunal. That matter also was considered by the learned primary judge (see pars [37] and [40]).

13 The appellants have failed to show any error on the part of the learned primary judge. We cannot detect any such error. The appeal should therefore be dismissed with costs. The order of the Court is that the appeal is dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice North and the Honourable Justice Dowsett.

Associate: Dated: 25 November 2002

Counsel for the Appellants:	The appellants appeared in person.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 November 2002
Date of Judgment:	14 November 2002